Murder or manslaughter? – When does someone kill insidiously?

There is hardly any myth that is more persistent than the criterion for differentiating between manslaughter and murder: Many people assume that murder is planned and manslaughter is committed in the heat of the moment, which would distinguish the two crimes from each other.

In fact, murder does not have to be planned in advance, nor does criminal liability for manslaughter require an act of passion. For the realization of both facts, simple intent is equally required.

What makes a manslaughter a murder is the presence of one of the so-called murder characteristics laid down in the law. Thus, Section 211 (2) of the Criminal Code states: “A murderer is one who kills a human being out of homicidal desire, for the satisfaction of sexual urges, out of greed or otherwise for base motives, insidiously or cruelly or by means dangerous to the public or in order to enable or conceal another criminal act.”

In particular, the question of the existence of the murder characteristic of insidiousness often occupies the courts.

According to prevailing case law, a person acts insidiously if he consciously and with hostile intent takes advantage of the victim’s helplessness and defenselessness. A person who is not aware of any attack at the time of the act is malicious. The victim is defenseless if, as a result of the guilelessness, he or she is so limited in his or her possibilities of defense that he or she cannot ward off the attack or make it more difficult.

Regardless of the established definitions of the necessary conditions of a murder out of malice aforethought, their existence in individual cases is quite difficult to determine, so that the Federal Court of Justice had to deal with this issue again recently.

Last year, the Cologne Regional Court convicted a man of manslaughter to the detriment of his extramarital partner (Cologne Regional Court, judgment of March 17, 2022, file no. 104 Ks 23/21).

The defendant drove with this in 2020 in their passenger car to a secluded place. While the woman was sitting in the passenger seat of the stationary vehicle, the defendant, who at that time was either outside the vehicle on the passenger side or behind the passenger seat on the back seat, shot her twice in the head at point blank range.

The Cologne Regional Court did not consider the murder criterion of insidiousness to be fulfilled in this case.

In the opinion of the Regional Court, it could not be established with certainty that the woman was actually unaware of the impending attack at the moment the first shot was fired – it was conceivable that the defendant had threatened her with the firearm beforehand. From this, the judges concluded that there had been a lack of guile.

The BGH, however, took a different view (judgment of May 24, 2023, file no. 2 StR 320/22): The LG had for the time of the attack wrongly only on the moment of the first shot. Decisive in this respect is the question of when in a temporally extended, multi-part sequence of events, the attack begins.

An attack begins, however, according to the BGH “not only with the actual act of killing […], but also includes the phase immediately preceding.”

To reject the guilelessness of the woman solely on the basis of the possibility of a previous threatening situation would be legally erroneous.

“An insidious action [could] furthermore also lie in precautions taken by the perpetrator in order to create a favorable opportunity to kill, provided that these still continue to have an effect when the act is committed. […] Whether the victim was still guileless at the beginning of the killing attack is irrelevant in this constellation of facts.”

In this case, the defendant obtained the murder weapon immediately before driving to the later crime scene.

The LG had not dealt with the question of whether the person who was later killed “had any possibility at all to flee or to defend herself […] in the case of a threat with the firearm that may have occurred before the shot was fired.”

Thus, it could well be that the defendant, while still in the preparatory stage, exploiting the woman’s guilelessness by threatening her, put her in a defenseless position, which he maintained until the first shot was fired. Then an insidious killing, and thus a murder, would come into consideration.

Another criminal division of the Cologne Regional Court will now have to deal with the details of the crime in more detail – it will be interesting to see what conclusion the judges will come to.